Crime or accident? Social and environmental impacts of mining from Minas Gerais to Maranhão

Understanding how the mineral extraction model in Brazil continues to leave irreversible marks on nature and the life of people beyond the Minas Gerais territory, such as the Maranhão communities, Piquiá de Baixo and Santa Rosa dos Pretos.

January 25, 2020 will be the first anniversary of Brumadinho’s socio-environmental crime. Exactly at 12:28 pm on a Friday, the Córrego do Feijão dam belonging to Vale S.A., in the metropolitan region of Belo Horizonte, suddenly broke down dumping 12 million cubic meters of mud and metal waste. A veritable sea of ​​ore-tailed mud killed the Paraopeba River, destroyed homes in the Córrego do Feijão region, killed more than 250 people (11 are still missing) and continues to affect the lives of the population of Minas Gerais, especially those living near the tailings dam.

Vale is also involved in the breaking of the Fundão dam in the Bento Rodrigues district in Mariana (MG), which occurred in 2015. In addition to Minas Gerais, the company also continues to undermine well-being of communities in the state of Maranhão, as is the case of Piquiá de Baixo, a community impacted by the Carajás Railroad (EFC), owned by Vale S.A., and by the steel industry in that region. Santa Rosa dos Pretos, in the North of the State also suffers negative impacts on its ways of life, traditions and the basic right to access water in its territory, caused by the implementation and expansion of the EFC, used to transport the ore, which is mainly exported to China.

In the Santa Rosa dos Pretos “quilombo” – a slave-descendant community – , the stream was interrupted by Vale S.A. during the construction of the Carajás Railroad.
Photo: Andressa Zumpano.

In all these cases, water is the most affected universal good. For example, in Barcarena, Pará State, in February 2018, the dumping of toxic waste from the Hydro Alunorte refinery, owned by Norwegian Norsk Hydro, struck communities and rivers. In Mariana, the Doce River was contaminated with 43 million cubic meters of tailings. Piquiá suffers from water supply problems and steelmakers pollute the river that flows through the community. Santa Rosa dos Pretos had one of its main courses of water cemented over during the works of the railway doubling.

The giant wave of toxic mud and the daily impacts caused by the logistic infrastructure and mineral chain as a whole, reveal that the mineral exploration in the country continues shattering dreams of children, women and men and any possibility of healthy life near the big enterprises.

It is a chain of irreversible impacts on human life and the environment that causes even more outrage because of impunity. In all the situations mentioned, companies try to shirk their responsibilities by using a violent resource: the thesis that it was an “accident”. At several press conferences, following Brumadinho’s environmental tragedy, then-CEO of Vale S.A., Fábio Schvartsman, said he had not been warned about the risks and characterized the breach of the dam as an accident. However, internal documents seized during the investigations indicated that there were at least 10 dams above the acceptable threshold and that the company’s directors deliberately “shielded themselves from information that could incriminate them to avoid being held accountable, with practices of retaliation and intimidation in a sector that the company dominated,” according to a report of Agência Brasil.

Accident or crime have different weights in collective imagination and from the point of view of legal and criminal liability.

To better understand what characterizes both, we interviewed Danilo Chammas, a lawyer who works for human rights in communities impacted by mining in Maranhão and Minas Gerais. In the interview, the lawyer comments on the difference between crime and accident, as well as on the impacts of the large mining projects operated by Vale S.A. in Brazil, especially in Brumadinho and in the Maranhão communities.

In Piquiá, steelmakers use river water that flows through the community and returns contaminated water to the river. Photo: Idayane Ferreira.

Danilo, what is the difference between crime and accident?

This theme is important because it explicitly shows the narrative dispute that occurs in contexts of social and environmental conflicts. Not by chance, we have been seeing different ways of referring to the same fact all the time, depending on the author of the discourse.

In the case of Brumadinho, we see, on the one hand, Vale S.A., as the most responsible for the fact, striving to qualify the dam rupture (and its tragic consequences) as an “accident”. This was so, for example, in the unforgettable testimony of the then-CEO of the company, Fabio Shvartsman, to the House of Representatives External Commission, in February 2018, in which he stated that: “Vale is a Brazilian jewel that cannot be condemned by an accident that happened in one of its dams, no matter how great the tragedy”.

In Brumadinho, on the other hand, there is the insistence of some of the relatives of fatal victims and persons impacted in a general way saying that “it was not an accident, it was a crime”. This narrative carries with it the yearning for the recognition that the perpetrators are to be punished (justice) and obliged to repair the damage they caused (full reparation).

Returning to Fabio Schvartsman’s testimony, the word “accident” was not used casually by him. On the one hand, in the eyes of the public, this word gives the impression that what happened was something unexpected, unpredictable and could not have been avoided by Vale S.A.. Spreading this idea is fundamental to preserving the company’s image and reputation in the public eye. A reputable company is more likely to make partnerships, enter into contracts, raise finances, find investors, obtain tax breaks, licenses and other permits for its operations from the government, and cam more easily disqualify the narrative of those who are victimized by its ventures and strive for recognition of their rights.

“Just as Vale S.A. seeks to be acquitted in the judgment of public opinion, the use of the word accident also has important legal implications.”

Firstly, under civil law, when a situation is considered unavoidable, it can be classified as a “fortuitous case” or due to “force majeure”, which ultimately frees the perpetrator of the duty to repair the damage caused. A “fortuitous case” is precisely an event arising from human action that is unpredictable and therefore inevitable. “Force majeure, in turn, refers to situations in which the event, even if predictable, is seen as inevitable. This last expression refers to nature’s events, such as hurricanes and major storms, for example.

On the other hand, the word “accident” can also influence the criminal liability of the individuals and legal entities involved. Remember that “accident” also brings the idea that the agent causing the damage did not intend to cause it. This can have important effects from the point of view of criminal liability, as there are several offenses that, by definition, do not provide for punishment of the offender if the conduct is wrongful but unintentional. On the other hand, for crimes in which the wrongful form is also penalized, the difference is expressed in the amount of punishment, which is usually much smaller than in the intentional form. Just look at the example of the crime of simple homicide, which, if malicious, has a minimum penalty of 6 years and a maximum penalty of 20. However, if wrongful, the penalty will be between 1 and 3 years.

Working with legal advice to various communities, how do you observe the narrative about accidents being felt in the communities? Is there any fact you want to report?

The talk about accident is also used by Vale S.A. and other mining chain companies in other contexts, precisely to defend their reputation in the public eye and to shirk their duty to repair the damage caused. This is the case, for example, in the case of accidents along the Carajás Railroad and also in the case of burns due to the contact of children with the incandescent waste from the pig iron production deposited by the Northeast Pig-Iron firm in the community of Piquiá de Baixo, in Açailândia (state of Maranhão).

In what way does the discourse that what happened in Brumadinho was an accident reverberate in the other impacted communities?

I have been going around various communities and I see that people in general have rejected this expression. I even remember a slogan that has been chanted in many public acts: “No! No! It was no accident! Vale kills the river, kills fish and kills people! ” (NB. rime lost in the translation), which has been used since the breach of the Fundão dam in the city of Mariana in 2015. This narrative dispute is therefore very relevant for the definition of the future. Defining how the story will be told directly influences the living conditions of the people: those who have already suffered the damage and who may not receive remedial measures, as well as those from other places who may suffer from the same ills, if these situations continue to be seen as mere accidents.

In addition to lawsuits seeking punishment and compensation for damages, the struggle of the victims’ relatives is also for the change of speech: “it was a crime and not an accident!”. How does this recognition fit into the concept of reparation and what has been the position of family members to dispute the narratives?

In Brumadinho, many affected people are also aware of this and for this reason it is common to find in their banners and speeches the statement that the breaking of the dam was not only an accident, but also a malicious crime. There is, however, a complicating factor. The definition of “occupational accident”, a concept found in Labor Law, ends up adding to the confusion, especially in a case where the vast majority of fatalities are of direct or indirect companies’ workers. This is because this concept is applied even when the fact is predictable, preventable or due to the intentional conduct of the person who caused it.

It is also worth noting that the aforementioned statement by Fabio Shvartsman, in which he qualified Vale S.A. as a “Brazilian jewel”, caused the family members of fatal victims to adopt this same expression as a flag to refer to their loved ones who lost their lives because of the dam rupture. “My mother, Malu, was a Brazilian jewel. It is not Vale who judges who is or is not a jewel, ”said Patricia Borelli, daughter of Maria de Lourdes da Costa Bueno, in an article published in Folha de São Paulo, a few days after Shvartsman’s testimony. “Vale S.A. murdered, with the utmost cruelty, all the people we call jewels “. “Vale S.A. and other mining companies are not jewels. They kill fauna, flora, rivers, destroy families. Today I see mining as a form of crime. Crime against life in every instance”, said Andresa Rodrigues, Bruno Rodrigues’ mother. This dispute of narratives is part of what the jurisprudence of international human rights law defined as the RIGHT TO MEMORY AND TRUTH.

Could you tell us a little more about the Right to Memory and Truth and about the concept of integral reparation?

The RIGHT TO MEMORY AND TRUTH has been demanded with emphasis by human rights movements and organizations in the processes of transition from authoritarian to democratic regimes. These actors seek to dispel the fear of knowing and telling the facts as they really happened. In the case of Brazil, although very late, we rely on the work of the Special Commission for the Political Dead and Missing, which published its dossier in 2007.

The concept of comprehensive reparation, developed from the jurisprudence of the Inter-American Court of Human Rights, includes “measures of satisfaction”, which are measures to be imposed on violators of rights to alleviate the pain of victims through the reconstruction of the truth, the diffusion of historical memory and the dignifying of victims. In practice, this is expressed through public acknowledgment of responsibility, public apologies, acts of homage, construction of memorials or other ways of spreading the truth about the facts.

Lying and forgetting are useful to perpetrators because they help them to get rid of punishment, the responsibility to repair the damage and the duty to take effective measures so that the same facts never happen again. The motto is: “never to forget so that it never happens again”.

How has this dispute for the Right to Memory and Truth occurred in Brumadinho?

Also in the case of Brumadinho this dispute has occurred in practice. In one of the lawsuits proposed by family members of fatal victims Vale S.A. it was required to display, for 20 years, at the entrances to the headquarters and branches of the company and its subsidiaries worldwide, photographs with texts in honor of the victims, in addition to the reading of a text at the beginning of all shareholders’ meetings of the company that starts with the phrase “life is worth more than profit”. There is also the struggle of the association of family members of fatal victims (AVABRUM) for the construction of a memorial in honor of the victims.

In the same vein, the Casa Branca Water and Mountain Movement is developing a front to rescue and dignify the historical memory of the struggle of its members in defense of water and in opposition to mining in the region. An exhibition will be launched at a public event to be held on January 23, at the Carmela Caruso Alluoto Municipal School, at 6:30 pm, in Casa Branca (MG), in the context of the activities that will mark the 1st year of the dam disaster. On the 24th and 25th of January the exhibition will be taken to the center of Brumadinho. On Sunday, January 26, there will be a press conference and a walk through the streets of Casa Branca.